Epstein on the America Invents Act

This past week, patent lawyers were feverishly preparing reams of new patent applications to be filed under the 2011 America Invents Act (AIA), which took effect on March 16, 2013, a year and a half after Congress passed that unwise measure. The AIA replaced the old First-to-Invent standard with a First-Inventor-To-File standard. To the outsider, that shift in legal rules may seem like no big deal. But there are firms to which patent priority is worth many millions of dollars. Under the new paradigm, firms must ensure that they “file as early and as completely as [they] can!”

Structuring a patent system is no easy business, for it requires a delicate balance between two competing imperatives. The first is to give inventors the incentive to create new products; the only reliable device here is the exclusive right to market the product for a limited period of time. The second is to ensure that the invention is disseminated widely, which requires limiting the scope and duration of the inventor’s monopoly. In general, the first function is more important for it incentivizes innovation. After all, it is not possible to widely disseminate inventions that were never made.